Houston Cartage Co., Inc.

National Labor Relations Board - Board Decisions

Jun 12, 1937

2 N.L.R.B. 1000 (N.L.R.B. 1937)

In the Matter of HousToN CARrAGE COMPANY, INC. and LOCAL UNION
No. 367, INTERNATIONAL BROTHERHOOD OF TEAMSTERS , CHAUFFEURS,.
STABLEMEN, AND HELPERS OF AMERICA, and L. S. BROOKS
Case No. C-153.Decided June 12, 1937
Motor Truck Transportation Industry-Interference , Restraint or Coercion:
persuading employees not to join union ; discrediting union ; expressed opposition
to union, threats of retaliatory action ; engendering fear of loss of employment
for union membership and activity-Discrimination : discharge-Reinstatement
Ordered-Back Pay: awarded.
Mr. Karl H. Mueller for the Board.
Mr. Charles A. Perlitz, Jr., of Houston, Tex., for respondent.
Mr. Rolland Bradley, of Houston, Tex., for.Local Union No. 361
and L. S. Brooks.
Mary Lemon Schleifer, of counsel to the Board.
DECISION
STATEMENT OF CASE
On November 17, 1936, L. S. Brooks, individually and as President
of Local Union No. 367, International Brotherhood of Teamsters,
Chauffeurs, Stablemen, and Helpers of America, filed a charge with
the Regional Director for the Sixteenth Region (Fort Worth, Texas),
alleging that Houston Cartage Company, Inc., Houston, Texas, here-
inafter referred to as the respondent, had engaged in and was engag-
ing in unfair labor practices within the meaning of the National
Labor Relations Act, 49 Stat. 449, hereinafter referred to as the Act.
On December 21, 1936, the Acting Regional Director for the Sixteenth
Region duly issued and served upon the parties a complaint and notice
of hearing. The complaint alleged that the respondent, by the dis-
charge of L. S. Brooks on October 23, 1936, had engaged in unfair
labor practices affecting commerce, within the meaning of Section 8,
subdivisions (1) and (3), and Section 2, subdivisions (6) and (7) of
the Act.
Pursuant to the notice, a hearing was held in Houston, Texas, on
December 28 and continued on December 29, 1936, before George O.
Pratt, the Trial Examiner duly designated by the National Labor Re-
lations Board, hereinafter referred to as the Board. The respondent
was represented by counsel and participated in the hearing. Full op-
portunity to be heard, to examine and cross-examine witnesses and to
1000
DECISIONS AND ORDERS 1001
introduce evidence bearing on the issues was afforded all parties.
At the opening of the hearing, counsel for the respondent filed an
answer to the complaint. The answer alleged that the Act is uncon-
stitutional in several respects, denied that L. S. Brooks had been dis-
charged because of his union activities and alleged that "on or about
October 23, 1936, it was required for the good of its business to dis-
charge the said L. S. Brooks on account of his having violated certain
of its rules and orders . . ." The Trial Examiner ruled that as to
those portions of the answer which constituted a motion to dismiss,
such motion was denied. Objections to the introduction of evidence
were made by counsel for the respondent and counsel for Local Union
No. 367. The Board has reviewed the rulings of the Trial Examiner on
motions and objections and finds that no prejudicial errors were
committed. The rulings are hereby affirmed.
On February 16, 1937, the Board, acting pursuant to Article II,
Section 37 of National Labor Relations Board Rules and Regula,
tions-Series 1, as amended, ordered the case to be transferred to and
continued before it.
Upon the entire record in the case, the Board makes the following
FINDINGS OF FACT
I. THE RESPONDENT'S BUSINESS
The respondent, a Texas corporation, was organized in April, 1936;
for the sole purpose of performing services under a contract with a
railroad system commonly known as the Southern Pacific Lines.
The application of the respondent to the Interstate Commerce Com-
mission states that the respondent requests a certificate of public con-
venience as a contract carrier to transport freight by means of trucks
in Houston, Texas, and contiguous municipalities for the Southern
Pacific Lines, T. & N. O. Railroad Company, and Southern Pacific
Transport Company.,
The services performed by the respondent consist of picking up
less-than-carload lots of freight at the places of business of con-
signors in Houston, Texas, and delivering it to the freight docks of
the railroads operated under the name of Southern Pacific Lines, for
the purpose of shipment by the railroads ; and of delivering less-
than-carload lots of freight received by rail at the Houston sta-
tions of the Southern Pacific Lines, to the places of business of con-
signees in Houston, Texas. This door-to-door pick-up and delivery
system is one which has recently been offered by many railroads in
an effort to compete with long run hauls of freight by motor trucks.
As is customary in other cases no additional charge is made, as such,
I These railroads are apparently all parts of the sy stem called Southein Pacific Lines.
1002 NATIONAL LABOR RELATIONS BOARD
to the customer for this service ; the charge, if any, being included
in the total freight charges. The Southern Pacific Lines pays the
respondent a flat rate based upon the weight for every package so
picked up or delivered.
Due primarily to keen competition among the railroads and be-
tween the railroads and the motor transportation companies, great
efficiency and speed are required of the respondent by the railroad.
Schedules of pick-up are geared to meet train schedules, so that
freight is dispatched with the least possible delay. The respondent
and the railroads make every effort to have all freight in transit or
delivered on the same day it is received.
The respondent, through arrangement with the Southern Pacific
Lines, maintains a daily schedule of places where it stops to pick up
freight. These places include among others the steamship docks in
Houston, Texas, where freight carried by steamship companies is
deposited for further shipment on the railroads of the Southern
Pacific Lines. The record shows that one of these steamship com-
panies operates from Philadelphia, Pennsylvania, to Houston, Texas,
with only one port of call at Norfolk, Virginia, and another from
New York to Houston, Texas. In addition, the respondent receives
telephone requests for occasional pick-up services on its own wire
and maintains a dispatcher in the office of the Southern Pacific Lines
to receive calls made directly to the railroad companies for pick-up
service.
Freight received at the Houston freight depots of the Southern
Pacific Lines is picked up by the respondent at the freight docks of
the railroads and delivered to consignees in the vicinity of Houston
or to the docks of the steamship companies for further transportation.
The railroads operated under the name Southern Pacific Lines
extend from California through many western and southern States
including Nevada, Utah, Arizona, New Mexico, Texas, and Louisiana
and into the country of Mexico. The record does not show exactly
what proportion of the freight handled by the respondent is con-
signed for shipment in interstate commerce or has already been
shipped in interstate commerce when it arrives in Houston, Texas.
It does show that shipments from consignors outside the State of
Texas are handled frequently; that the respondent accepts all freight
whether it is to be or has been shipped outside the State of Texas
or within the State of Texas; that one of the customers sending and
receiving shipments daily is a branch of the Ford Motor Company
and that it receives shipments from time to time from Detroit; and,
as previously stated, it handles freight which has been or is to be
transported by intercoastal steamship lines.
The freight has been wrapped or crated and marked for shipment
by the consignor, before it is delivered to the respondent. The re-
DECISIONS AND ORDERS 1003
spondent 's drivers issue bills of lading in the name of Southern
Pacific Transport Company to the consignorf's and make out a ship-
ping order which goes to the railroad . The drivers also collect
freight charges for the railroad when such charges have not been
prepaid.
The services rendered by the respondent for the railroads begin or
end the interstate journey of the freight and are in no sense apart
from the interstate transportation.
We find that the respondent in the activities above described is
engaged in traffic, commerce , and transportation among the several
States, and that the truck drivers employed by the respondent to
receive or deliver such freight are directly engaged in such traffic,
commerce, and transportation.
II. THE UNION
International Brotherhood of Teamsters , Chauffeurs, Stablemen
and Helpers of America, affiliated with the American Federation of
Labor, granted a charter to Local Union No. 367, hereinafter referred
to as Local 367, in October, 1936 . Local 367 is a labor organization
which admits to membership truck drivers, helpers, and warehouse-
men employed by others as well as such persons employed by the
respondent.
III. THE DISCHARGE OF L. S. BROOKS
L. S. Brooks began working for the respondent at the time the
respondent began operations on April 17 , 1936, and worked con-
stantly for the respondent until the time of his discharge on October
23, 1936. He was employed at all times as a truck driver, and was
engaged in the pick-up and delivery of freight and the duties inci-
dent thereto as above described . At the time of his discharge Brooks
was earning $18 per week.
The evidence shows that during the period from April 17, 1936, to
September 15, 1936, there was no organization among the respond-
ent's employees and that in that period only one of the 16 drivers
employed by the respondent was discharged . Shortly after Septem-
ber 15, 1936 , the drivers and helpers employed by the respondent
began to organize ; the charter was issued to Local 367 on October 7,
and officers were elected on October 18, 1936. Within the period
from September 15 to October 23, 1936, the respondent discharged
five or six drivers, all of whom had joined Local 367.
That the respondent 's officers were clearly aware that their men
were organizing is shown by the remarks of W. C. Smith, president
of the respondent , to the employees at meetings called by him on or
about October 3 , 1936, and on or about October 17, 1936. The gist
of these remarks was that while Smith had no objection to his men
1004 NATIONAL LABOR RELATIONS BOARD
joining any union he, personally, thought all unions were bad and
this was particularly so of the International Longshoremen's Asso-
ciation, and that if they formed a union the longshoremen on the
docks would demand the right to load freight coming off the boats
into the respondent's trucks and that the respondent might be com-
pelled to discharge the helpers then employed on the trucks. He
also stated that he "didn't want any of the Union boys messing
around with the negro laborers" he had working for him in the
W. R. Smith Transfer Company "because he had a good bunch of
Negroes."; The attitude of Smith towards the union activities of
his employees is apparent in such remarks and the remarks are not
rendered innocuous by his statement that he had no objection to his
men joining a union.
Smith's determination to prevent his employees from joining a
union was also expressed in other ways. During this period he
found it necessary to discharge five or six drivers, all of whom were
members of Local 367, for minor infractions of company rules. He
told the employees that he was planning to give them a bonus at
Christmas time but in the case of an employee who asked him for a
raise he stated "he wasn't going to raise nobody until this Union
business was settled; that he might have to hire a whole new crew of
men".
The result of the respondent's antagonism was that at the time of
the hearing no driver or helper employed by the respondent was a
member of Local 367, or if he had previously joined he was not pay-
ing dues or attending the meetings of Local 367, although the record
shows that on or about October 15th a majority of the drivers then
employed by the respondent were members of Local 367.
On October 18, 1936, Brooks was elected president of Local 367.
Since Smith knew of the previous activities of his employees in or-
ganizing, and since the record shows that a non-union employee work-
ing for the respondent addressed Brooks at work the following morn-
ing as "Mr. President", it is a reasonable inference that Smith knew
that Brooks had been elected president. Even if Smith did not know
Brooks had been elected president of Local 367, the record shows
Smith knew Brooks was active in union affairs.
On Wednesday, October 21, three days after Brooks was elected
president of Local 367, E. O. Schubert, secretary-treasurer of the
respondent, followed the truck Brooks was driving for several hours
during the afternoon for the purpose of observing Brooks. Schubert
was in his own car, some distance behind the truck and Brooks was
not aware that he was being followed. On the following day, Thurs-
day, October 22, two supervisors employed by the respondent fol-
2 w. C. Smith also operates the W. R. Smith Transfer Company, a transfer and
storage company.
DECISIONS AND ORDERS 1005
lowed Brooks in a similar manner and for the same purpose. At the
close of work on Friday, October 23, Schubert handed Brooks a letter
signed by Smith which read :
"There has come to my attention that on Wednesday of this
week you were not performing rail services of this company as we
require of our drivers. You were some 45 minutes when en route
between the Ford Motor Company and the Mengden & Company,
during which time you were far off your scheduled route. On this
same day you again left your route after leaving the Shipside
Warehouse and went to the Harbor Hotel, where you remained
some 15 or 20 minutes. You also apparently in order to make up
time which you had thus lost drove your truck far in excess of
the speed limit on Canal Street.
"For these infractions and for the good of our company, I am
therefore required to discharge you as of today".
At the hearing Smith testified that the letter incorrectly stated
that all of these offenses were committed on Wednesday, October 21,
but that it should have stated that some of them occurred on Thurs-
day, October 22. Comparison of the testimony of Schubert, Brooks,
Miller, one of the supervisors who followed Brooks on October 22,
and Evans, a helper who was riding on the truck with Brooks on
both days and who has been employed as the driver of the truck
since Brooks' discharge, shows that Brooks did not spend 45 minutes
nor get off his route between the Ford Motor Company and Meng'-
den & Company on either day; that Brooks did stop at the Harbor
Hotel on Thursday for the purposes' of buying some cigarettes and
to see a man at the hotel on business not connected with his work
for the respondent but that the man was not in and Brooks returned
promptly to his truck; that in stopping at the Harbor Hotel Brooks
was not off his route; that Brooks did exceed the 20 mile speed limit
on Canal Street on both days but that he handled his truck skillfully
and competently at all times and was not driving at ,tn excessive
speed in comparison with other traffic on the street.
It is true that to some extent Brooks did not perform his duties
in strict compliance with the respondent's rules. It is also true that
at the hearing it was shown Brooks made two additional stops on
Thursday October 22, not mentioned in the letter of dismissal, oii
personal business. It is not for us to determine whether or not these
infractions of the respondent's rules were sufficiently grave to justify
the discharge of Brooks. What we are concerned with is whether
or not Brooks was discharged because of these infractions or -whether
the respondent, desiring to rid itself of Brooks because of his union
activities, searched for some cause to cloak its real motive for the
discharge. Experience has shown this Board that there is no field
1006 NATIONAL LABOR RELATIONS BOARD
of employment where employers can so easily find means to cloak
their real motives for discharging employees as in the employment
of bus or truck drivers. In practically every case which has come
before us involving such employees,3 it has been charged and proven
that the discharged employees have exceeded the speed limit, left
their route or made stops not strictly in line with their duties. But
from the very nature of the work of bus or truck drivers it is ap-
parent that an employer has only to follow any truck or bus driver
for a comparatively short time, to find him guilty of many such
violations. We are, therefore, not impressed with the sincerity of
an employer who advances such reasons for a discharge, where he
fails to show that such violations were flagrant or repeated and
where the surrounding circumstances indicate that the employee was
active in union activities to which the employer was opposed.
What we have just said is peculiarly pertinent to this case. The
evidence shows that Brooks was a careful and conscientious worker,
that up until the time just preceding his discharge the respondent
considered him a very good worker, so good in fact that while the
respondent had four supervisors who followed the trucks in the
same way they followed Brooks, no evidence was introduced to show
that Brooks had ever been observed in this manner during the previ-
ous six months or that he had been found violating any company
rules. The trailing of Brooks by the respondent for two successive
days so soon after he had been elected president of Local 367 is
more than a coincidence.
Coupled with this are the further significant facts that Brooks
was given the letter of dismissal by Schubert with no explanation,
and 'was refused permission by both Schubert and Smith to discuss
the matter when he informed them the letter did not state the facts
correctly; and that in the main the letter was actually incorrect in the
violations charged. We think the conclusion inescapable that the
respondent had resolved to get rid of Brooks because of his union
activities, and sought and found violations of company rules and
assigned them as the reason for the discharge.
We find that the respondent by discharging L. S. Brooks has
discriminated in regard to hire and tenure of employment to dis-
courage membership in a labor organization.
The respondent by the discharge of L. S. Brooks has interfered
with, restrained, and coerced its employees in the exercise of the
rights of self-organization, to form, join or assist labor organizations,
$ See for example, In the Matter of Pennsyltania Greyhound Lines, Inc., Gi eyhound
Management Company, Corporations and Local Division No . 1063 of the Amalgamated
Association of Street, Electric Railway and Motor Coach Employees of America,
I N. L. R. B. 1, decided December 7, 1935, and In the Matter of Hill Bus Company, Inc.
and Brotherhood of Railroad Trainmen , Rockland Lodge No. 329, Spring Valley, New York,
Case No C-141, decided May 3, 1937 (supra, p. 781).
DECISIONS AND ORDERS 1007
to bargain collectively through representatives of their own choosing,
and to engage in concerted activities for the purposes of collective
bargaining and other mutual aid and protection.
We find that L. S. Brooks was an employee of the respondent at
the time of his discharge and ceased work because of the unfair labor
practices of the respondent.
On the basis of experience in the motor carrier transportation
and other industries, we conclude that the respondent's conduct, and
each item of such conduct, burdens and obstructs commerce and tends
to lead to labor disputes burdening and obstructing commerce and
the free flow of commerce, by impairing the efficiency, safety, and
operation of instrumentalities of commerce.
CONCLUSIONS OF LAW
Upon the basis of the foregoing findings of fact and upon the
entire record in the proceeding, the Board makes the following
conclusions of law :
1. Local Union No. 367, International Brotherhood of Teamsters.
Chauffeurs, Stablemen, and Helpers of America, is a labor organiza-
tion, within the meaning of Section 2, subdivision (5) of the Act.
2. L. S. Brooks was an employee of the respondent at the time of
his discharge, within the meaning of Section 2, subdivision (3) of
the Act.
3. The respondent, by discriminating in regard to the hire' and
tenure of employment of L. S. Brooks and thereby discouraging
membership in a labor organization, has engaged in and is engaging
in unfair labor practices, within the meaning of Section 8, subdivision
(3) of the Act.
4. The respondent, by interfering with, restraining, and coercing
its employees in the exercise of the rights guaranteed in Section 7
of the Act, has engaged in and is engaging in unfair labor practices,
within the meaning of Section 8, subdivision (1) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices
affecting commerce, within the meaning of Section 2, subdivisions (6)
and (7) of the Act.
ORDER
Upon the basis of the above findings of fact and conclusions of
law, and pursuant to Section 10, subdivision (c) of the National
Labor Relations Act, the National Labor Relations Board hereby or-
ders that the respondent, Houston Cartage Company, Inc., and its
officers, agents, successors, and assigns, shall :
1. Cease and desist from
(a) In any manner interfering with, restraining, or coercing their
employees in the exercise of their rights to self-organization, to form,
1008 NATIONAL LABOR RELATIONS BOARD
join or assist labor organizations, to bargain collectively through-
representatives of their own choosing, and to engage in concerted
activities for the purposes of collective bargaining and other mutual
aid or protection, as guaranteed in Section 7 of the National Labor
Relations Act;
(b) In any manner discouraging membership in any labor or--
ganization by discrminating in regard to hire and tenure of employ-
ment or any term or condition of employment.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Offer to L. S. Brooks immediate and full reinstatement to his.
former position, without prejudice to rights and privileges previously
enjoyed;
(b) Make whole L. S. Brooks for any loss he may have suffered
because of his discharge, by payment to him of a sum of money
equivalent to what he would have earned as wages during the period
from October 23, 1936, to the date of the offer of reinstatement less-
whatever he may have earned elsewhere during the same period ;
(c) Post notices in conspicuous places where they will be observed
by respondent's employees stating (1) that the respondent will cease
and desist as aforesaid; (2) that such notices will remain posted for a
period of at least thirty (30) consecutive days from the date of-
posting ;
(d) Notify the Regional Director for the Sixteenth Region in
writing within ten (10) days from the date of this order what steps.
respondent has taken to comply herewith.